legal analysis of the arrest and release of a ship in 71 countries.

Transcription

1 8th Ed.

2 Welcome to the eight edition of the. This publication provides a legal analysis of the arrest and release of a ship in 71 countries. The aim is to assist the maritime community in the understanding of the procedures and practical issues arising from the arrest and release of a ship around the globe. The fact that maritime rules may be interpreted differently in different countries is significant. This publication guides you through the common issues arising from a ship arrest and offers the necessary information to unravel the different procedures. With the business picking up on the arrest front, this handbook has become a must for the maritime industry; likewise has the network gained a recognised global and professional position. Indeed, this annual publication owes its origin to and to the original idea of Dr. Felipe Arizon to offer transparency on arrest practices around the globe. Thanks are due to the members-contributors as well as to P&I clubs and cargo insurers for their continuous stimuli to keep publishing these yearly updates. The law is stated as at December 1st, Valentine de Callatay Managing Editor N.B.: The information contained in this book is for general purposes only, providing a brief overview of the requirements to arrest or release ships in the said jurisdictions; it do not contain legal or any type of professional advice. For a detailed synopsis, please contact the members law firms. 1

5 Overview 1. Please give an overview of ship arrest practice in your country. Applicable Laws 2. Which International Convention applies to arrest of ships in your country? 3. Is there any other way to arrest a ship in your jurisdiction? 4. Are these alternatives e.g. saisie conservatoire or freezing order? Claims subject to ship arrest 5. For which types of claims can you arrest a ship? 6. Can you arrest a ship irrespectively of her flag? 7. Can you arrest a ship irrespectively of the debtor? 8. What is the position as regards sister ships and ships in associated ownership? 9. What is the position as regards Bareboat and Time-Chartered vessels? Arrest Procedure 10. Do your Courts require counter-security in order to arrest a ship? 11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien? 12. Does you country recognise maritime liens? Under which International Convention, if any? 13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm? 14. Do you need to provide a POA, or any other documents of the claim to the Court? 15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed? 16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested? Miscellaneous 17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits? 18. Do the Courts of your country acknowledge wrongful arrest? 19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil? 20. Is it possible to have a ship sold pendente lite; if so how long does it take? 4

6 SHIP ARREST IN ALGERIA By Dr. D. Ben Abderrahmane* BEN ABDERRAHMANE & PARTNERS 26, boulevard Zirout Youcef, Algiers Tel: / Fax: Please give an overview of ship arrest practice in your country. Algeria has a long tradition in maritime law, including maritime arrests. Algerian law is generally not restrictive in allowing conservatory and provisional measures. Algeria, and most specifically the ports of Algiers, Oran, Annaba as well as the oil and gas terminal of Arzew and Skikkda has a favourable reputation for being a convenient place to arrest ships. 2. Which International Convention applies to arrest of ships in your country? Algeria is since August 1964 member of the Brussels Arrest convention of Some general principles of the convention have been incorporated in the Algerian Maritime Code (hereafter called CMA). 3. Is there any other way to arrest a ship in your jurisdiction? In practice for the Algerian Courts, the provision of the CMA and the provisions of the Code of Civil procedure (hereafter called CPC) remain the major source of law for the arrest of ships. 4. Are these alternatives e.g. saisie conservatoire or freezing order? No 5.For which types of claims can you arrest a ship? A ship can be arrested to secure a maritime claim Algerian law provides an open list, which may include claims of maritime nature like insurance premiums. A request to obtain authorisation to arrest a sea-going vessel has to be presented before the President of the court which has jurisdiction for the port of call. It is a unilateral request, and the President immediately grants or rejects authorisation. In theory, according to the CPC, the request can be submitted at any time, even out of court hours and during the weekend (in Algeria Friday & Saturday). In practice, the request can be submitted only from Sunday to Thursday. 6. Can you arrest a ship irrespectively of her flag? In theory there are two regimes: (i) A sea-going ship, flying the flag of a contracting State can be arrested in an Algerian port as a security for a maritime claim, as specified in littera a to q of Article 1.1 of the Brussels convention of (ii) A sea-going ship, flying the flag of a non-contracting State can be arrested in an Algerian port as a security for a maritime claim, as specified in Article 151 CMA. Pursuant to this provision maritime claim means any claims arising out of a contract or an event in connection with the operation or the management of the ship, any loss or damage caused by the ship due to its exploitation. In practice, Algerian courts tend to apply the provision of Article 151 CMA without differentiation. 7. Can you arrest a ship irrespectively of the debtor? The ship can be arrested even if the owner of the ship is not the debtor of the maritime claim. The owner of the ship, in order to have his ship released from arrest, has to give a guarantee for the payment of the claim of the author of the arrest. This means that the owner of the ship will have to guarantee the payment of the claim, even if a third person (charterer, issuer of the Bill of Lading) is the debtor toward the arresting party. 5

7 8. What is the position as regards sister ships and ships in associated ownership? Pursuant to Article 154 CMA, it is possible to arrest another ship, which is owned by the person who, at the time when the maritime claim arose, was the owner of the particular ship in respect of which the maritime claim arose. However, to the difference of the jurisprudence of several European States, Algerian courts do not authorise the arrest of a ship owned by another company than the debtor of the claim. This even if the claimant has sufficiently established that the separate corporate personality is only a fiction that does not correspond to reality. 9. What is the position as regards Bareboat and Time-Chartered vessels? A vessel that is in the ownership of the charterer can be arrested for a maritime claim against a time charterer. 10. Do your Courts require counter-security in order to arrest a ship? Algerian law impose on the claimant the deposit of a counter-security of ten per cent (10 %) of the amount of the maritime claim; to cover costs, charges, damages, fees or other expenses deriving from a potential wrongful arrest. 11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien? No. 12. Does you country recognise maritime liens? Under which International Convention, if any? Yes. 13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm? In practice, two days. Please note that Algeria does not have the universal week end. The Algeria week end is Friday & Saturday, during these days the court is closed; 14. Do you need to provide a POA, or any other documents of the claim to the Court? No power of Attorney is requested from the attorney representing the claimant. 15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed? The documents needed to arrest a ship are those evidencing the claim (such as contracts, bills of lading, letters requesting payments, protest or interim report of a surveyor, etc. Since the President will control very accurately the existence of a maritime claim, it is highly recommended to have as much documentary as possible to prove the alleged maritime claim. In the first stage of the arrest procedure no original documents are needed. The above mentioned documents can be filed electronically, notarisation and/or apostille is not required. The documents shall be submitted along with their translation in Arabic. If the translation is made outside Algeria the signature of the translator has to be authenticated by a public authority of his country and by the Algerian embassy territorially competent. The translation can be made in Algeria by an official translator; in that case no authentication is required. 16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested? Yes. 17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits? Pursuant to Article 350 CPC, the claimant must institute a legal proceeding on the merits before the competent court, within 15 days from the day the Ordinance authorising the is issued, otherwise the arrest will be held null and void. 6

8 18. Do the Courts of your country acknowledge wrongful arrest? The arrestor bears the risk of arresting the ship. If he loses the contradictory summary proceedings or the case on the merits, his arrest may be considered wrongful and he could have to indemnify all costs and damages caused to the ship, as a result of such wrongful arrest. However in practice, Algerian Judges are reluctant to countenance a claim for compensatory damages for wrongful arrest unless the bad faith or malice of the arrestor is established. 19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil? Algerian Courts do not acknowledge the piercing and lifting of the corporate veil. 20. Is it possible to have a ship sold pendente lite; if so how long does it take? It is possible to have a ship sold pendente lite; the timeframe depends on the circumstances of the case. * Dr. Dahman BEN ABDERRAHMANE is the Founder of the law firm Ben Abderrahmane & Partners, which is one of the leading Algerian law firms; active in Algerian maritime law. Our practice focuses on arresting vessels in Algeria Jurisdiction. Education: University of Frankfurt/Main (Germany); University of Paris 2 (Panthéon-Assas, France), University of Munich (Germany); Max Plank Institut für Ausländisches und Internationales Privatrecht, Hamburg (Germany): University of Paris 1 (Panthéon-Sorbonne, France). Career: Attorney at law, since admitted in Algeria and in France; International Arbitrator. 7

9 SHIP ARREST IN ARGENTINA By Dr. Gustavo P. Yusti & Dr. Emilio A. Callegaro* ADMIRALTYLAW LEGAL SERVICES S.A. Av. Alicia Moreau de Justo 740 1nd FL - Of. 104 C1107AAP - Dock 5 - Puerto Madero, Buenos Aires Tel./Fax Please give an overview of ship arrest practice in your country. Ship arrest in Argentina is a practical and legal alternative designed to ensure that credit holders against national or foreign vessels should collect their debt. Embargo involves the possibility of banning sailing of embargoed vessels, thus ensuring collection preventively while leaving open the possibility of foreclosure. The formality is usually swift and simple, matching the pace of foreign trade and the eventual change of jurisdiction of vessels liable to be embargoed. Let it be noted that embargo can be requested in advance to arrival of a vessel to an Argentine port. 2. Which International Convention applies to arrest of ships in your country? The Argentine Republic has not subscribed any international conventions that regulate ship embargo or arrest. However, these institutions are present in its legislation, namely in Navigation Act Nª 20,094 of 1973, published on February 2, 1973, which reflects some provisions of the Brussels Convention of According to the provisions of the Argentine Navigation Act, ship arrest in Argentine territory is fast, swift and favorable to the creditor s interest. 3. Is there any other way to arrest a ship in your jurisdiction? There are two ways of obtaining an embargo and banning navigation: preventive embargo and foreclosure. Both options require action on the part of a judge with jurisdiction over the issue giving rise to credit justifying the embargo. Both can and should bring about interdiction of sailing. The difference between them is that the former requires court order and the latter requires court ruling following due judicial process. 4. Are these alternatives e.g. saisie conservatoire or freezing order? Under Argentine legislation we see two types of unavailability, namely: a) legal unavailability embargo and/or b) physical unavailability detention or arrest. Thus our legislation provides the tools to obtain not only legal but also physical unavailability of a ship. 5. For which types of claims can you arrest a ship? In order to answer this question we must first ascertain that no matter the origin of the credit, any claim can lead to ship arrest, following court order or court ruling. Any credit, ordinary or privileged, stemming from a maritime claim or not is valid to request ship arrest or embargo. Requirements for the embargo or arrest to be granted depend on credit origin. Our Act, in sections 531 et al., as well as in section 482, draws the relation between the credit involved and the ship liable to be embargoed or arrested. 6. Can you arrest a ship irrespectively of her flag? 8

10 Absolutely: ship arrest is irrespective of her flag for privileged credits. Foreign (non Argentine) ships can be arrested due to: i) debts incurred in Argentine territory with respect to the ship involved or to another that belongs or belonged at the time of the credit origin to the same owner (principle drawn from the Brussels Convention of 1952) and ii) debts stemming from ship activity or from credits alien to it when they are recoverable before Argentine courts. This last option widens the chances of arrest and embargo of a ship when it is moored in Argentine territory. Regarding national vessels, the conditions for embargo and arrest are three. I) privileged credits; ii) other credits at the port of the owner s domicile or main facility: iii) credits alien to the ship, in which case the ordinary legal requirements must be filled. 7. Can you arrest a ship irrespectively of the debtor? Yes. A ship may be arrested irrespectively of the debtor. The prohibition to embargo or arrest does not fall on the character of the debtor but of the ship. According to the provisions of section 541, there is an absolute prohibition to embargo or arrest: a) war ships, national or foreign; ships under construction with a view to join military forces of a State; ships at the service of national, provincial or municipal governments; and there is a relative prohibition to embargo or arrest ships belonging to national, provincial or municipal governments and ships loaded and ready to depart. 8. What is the position as regards sister ships and ships in associated ownership? There is no mention of sister ships in our legislation. Regarding associated ownership, our legislation says that a ship belongs or belonged to the same owners when all and every part of it belongs to the same owners. E.g. Supposing I intend to embargo and arrest ship Z by virtue of a credit generated by ship Y, which at the time of credit origin belonged to A, B and C, the cautionary measure on Z will be relevant provided Z belongs to A, B and C. 9. What is the position as regards Bareboat and Time-Chartered vessels? Our legislation deals with this issue under the category Buque locado. If the ship that caused the credit was at the time chartered, operated by its shipowner/builder or by a time freighter, any other boat owned by the shipowner or the time freighter is liable to embargo, but not another ship belonging to the same owner. In this case the law restricts the possibility of issuing cautionary measures with respect to a ship different from the one that originated the credit owned by somebody who did not have direct or personal intervention in the original obligation. 10. Do your Courts require counter-security in order to arrest a ship? According to the provisions of the Argentine law, the court, more specifically the judge, who is dealing with the request for embargo or arrest will assess the need or otherwise of requiring counter security. This is in answer to two clashing interests, both relevant. On the one hand is the advisability of clearing obstacles to navigation, which is the main purpose of a ship; on the other hand, releasing the ship to navigate freely would eventually jeopardize the credit generated by its own activity. Let it be noted that the counter security that is customarily is responsibility of the intervening Court. 11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien? From a procedural point of view there are no significant differences, except in cases when credit stems from matters alien to the ship activity. In these cases the parties must appear before the court that has jurisdiction in the matter of the credit, e.g. credit stemming from a bank loan to the ship owner, or credit for compensation for damages generated by a car crash due to fault or negligence of the owner of the ship. 12. Does you country recognise maritime liens? Under which International Convention, if any? Yes. Our country recognizes lien with respect of debt or credit that is relevant to move on to ship embargo. 13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm? Once in possession of the relevant documents, the time to draw an embargo or arrest will vary depending on the next port of call. The possibility of application in the port of Buenos Aires should take a reasonable time period, in the understanding that we must file the claim before the competent 9

11 court, and provided that the ruling is issued before the ship leaves Argentine port. 14. Do you need to provide a POA, or any other documents of the claim to the Court? To act in the name and representing an individual or a legal entity we need a POA apostilled by The Hague. 15. What original documents are required, what documents can be filed electronically, what documents require notarization and/or apostille, and when are they needed? The documents required to embargo or arrest a ship are those that prove the existence and nature of a credit (contracts, invoices, etc) in the original and/or notarized, apostilled copy and the POA mentioned above. They must all be submitted at the time of request of arrest, which means that this firm should have access to them in advance. 16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested? The Argentine court dealing with the arrest must take the substantive claim, which means that the preventive embargo must be followed by foreclosure. 17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits? There is no term, only the terms provided for in the context of the statutes of limitation. 18. Do the Courts of your country acknowledge wrongful arrest? No. Both embargo and arrest are legal remedies and call for immediate compliance, both on the part of the court and the law enforcing agency, in this case the Coastguards. 19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil? Argentina has a lengthy sea coast, and Argentine judges have long experience in maritime law. Judges have been in office for many years and are well acquainted with the particulars of the activity. They will bear in mind the best interest of the claimant as well as the rights of the defendant. 20. Is it possible to have a ship sold pendente lite; if so how long does it take? The option to sell a boat for the purpose of collecting the credit that gave way to the embargo involves a court procedure that the parties have to follow. Both parties are entitled to procedural tools which may speed or slow the process of liquidation. The final duration of the process may be influenced by many factors, both intrinsic and external, so much so that we are not in a position to estimate a term. * Dr. Gustavo Pablo Yusti is dedicated to insurance law, and specifically to transport insurance matters. As lawyer of Argentinean Insurance Companies, Freight Forwarders and Importers/Exporters, he daily deals with coverage matters, recovery actions, interpretation of Argentinean General Insurance law & international insurance terms and conditions, solving matters relatives to maritime, air and road carriage, locally and international. Gustavo is also a Maritime Law professor in Moron s National University, as well as at UNLZ University, he is member of Argentinean Maritime Law association, CMI and Ibero-american Maritime law Institute and CMI. He is habitual speaker in conferences, and also assiduous consultant of important relative publications. * Dr. Emilio Andrés Callegaro is a lawyer specialized in Transport and Insurance law. He graduated of UBA (University of Buenos Aires, Argentina) on International specialization and has developed his professional carrier working both in the public and private sector. His experience includes working with insurance law and specifically with transport insurance matters. As lawyer of Argentinean Insurance Companies, Freight Forwarders and Importers/Exporters, Emilio daily deals with coverage matters, recovery actions, interpretation of Argentinean General Insurance law & international insurance terms and conditions, solving matters relatives to maritime, air and road carriage, locally and international. 10

12 SHIP ARREST IN AUSTRALIA By Stephen Thompson, Partner* K & L Gates Level 31, 1 O'Connell Street Sydney NSW 2000, Australia Tel: Fax: Please give an overview of ship arrest practice in your country. Initial ship arrest in Australia is fast, simple and inexpensive. All that is required is a Writ, Application for Arrest Warrant, Arrest Warrant and a pro-forma affidavit. There is a filing fee and the court requires a deposit on account of its costs and expenses of the arrest (insurance, travel of court staff, vessel moves etc). Once the papers are filed a court officer or his/her delegate attends on the vessel to effect the arrest. Officers are available to travel to remote ports for that purpose. 2. Which International Convention applies to arrest of ships in your country? None. Ship arrest is governed by the Admiralty Act 1988 (Cth) (the Act). However, there are many similarities between the Act and the 1952 Convention. 3. Is there any other way to arrest a ship in your jurisdiction? While freezing orders which could extend to a ship are available from Australian courts, they are considerably less attractive than ship arrest under the Admiralty Act. To obtain a freezing order it is generally necessary to demonstrate a strong prima facie case, establish a balance of convenience in favour of the injunction, and give an undertaking as to damages. None of those measures is required for ship arrest. 4. Are these alternatives e.g. saisie conservatoire or freezing order? See above. 5. For which types of claims can you arrest a ship? Arrest is available for maritime liens, proprietary maritime claims and general maritime claims. Maritime liens Arrest can be made in respect of a maritime lien, being a claim for: (a) salvage; (b) damage done by the ship; (c) wages of the master or member of the crew of the ship; and (d) master's disbursements. Proprietary Maritime Claims A proprietary maritime claim relates in broad terms to ownership of the vessel, and includes: (a) a claim relating to: (i) possession of a ship; (ii) title to, or ownership of, a ship or a share in a ship; (iii) a mortgage of a ship or of a share in a ship; or (iv) a mortgage of a ship s freight; (b) a claim between co-owners of a ship relating to the possession, ownership, operation or earnings of the ship; (c) a claim for the satisfaction or enforcement of a judgment given by a court (including a court of a foreign country) against a ship or other property in a proceeding in rem in the nature of a proceeding in Admiralty; or (d) a claim for interest in respect of a claim referred to in paragraphs (a), (b) or (c). 11

13 12 General Maritime Claims A ship may be arrested for a general maritime claim, when the "relevant person" (see Question 8 below): (a) was, when the cause of action arose, the owner or charterer of, or was in possession or control of the ship; and (b) is, when the proceeding is commenced, the owner of the ship A general maritime claim is: (a) a claim for damage done by a ship (whether by collision or otherwise); or (b) a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protection of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision as mentioned in subsection 7(1) of that Act; or (ba) a claim under: (i) (i) the applied provisions (within the meaning of the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008); or (ii) (ii) a law of a State or Territory of a kind referred to in subsection 10(1) of that Act; or (c) a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or in the apparel or equipment of a ship; or (d) a claim (including a claim for loss of life or personal injury) arising out of an act or omission of: (i) the owner or charterer of a ship; (ii) a person in possession or control of a ship; or (iii) a person for whose wrongful acts or omissions the owner, charterer or person in possession or control of a ship is liable; being an act or omission in the navigation or management of the ship, including an act or omission in connection with: (iv) the loading of goods on to, or the unloading of goods from, the ship; (v) the embarkation of persons on to, or the disembarkation of persons from, the ship; and (vi) the carriage of goods or persons on the ship; or (e) a claim for loss of, or damage to, goods carried by a ship; or (f) a claim arising out of an agreement that relates to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by charterparty or otherwise; or (g) a claim relating to salvage (including life salvage and salvage of cargo or wreck found on land); or (h) a claim in respect of general average; or (j) a claim in respect of towage of a ship; or (k) a claim in respect of pilotage of a ship; or (m) a claim in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance; or (n) a claim in respect of the construction of a ship (including such a claim relating to a vessel before it was launched); or (o) a claim in respect of the alteration, repair or equipping of a ship; or (p) a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls, charges or dues of a similar kind, in relation to a ship; or (q) a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Protection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain the ship is conferred by a law in force in Australia or in a part of Australia; or (r) a claim by a master, shipper, charterer or agent in respect of disbursements on account of a ship; or (s) a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; or (t) a claim by a master, or a member of the crew, of a ship for: (i) wages; or (ii) an amount that a person, as employer, is under an obligation to pay to a person as employee, whether the obligation arose out of the contract of employment or by operation of law, including the operation of the law of a foreign country; or (u) a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award within the meaning of the International Arbitration Act 1974) made in respect of a proprietary

14 maritime claim or a claim referred to in one of the preceding paragraphs; or (w) a claim for interest in respect of a claim referred to in one of the preceding paragraphs. As can be seen, the categories of general maritime claims are very wide, and substantially reflect arrestable categories of claim in other major jurisdictions and under the Arrest Convention. 6. Can you arrest a ship irrespectively of her flag? Yes. 7. Can you arrest a ship irrespectively of the debtor? Yes, although foreign states are immune from the jurisdiction of Australian courts, unless engaged in commercial transactions. 8. What is the position as regards sister ships and ships in associated ownership? There is a right to proceed against a sister ship (surrogate ship). A proceeding on a general maritime claim concerning a ship (Ship #1) can be commenced as an action in rem against some other ship (Ship #2) if: (a) a "relevant person" in relation to the claim was, when the cause of action arose, the owner or charterer of, or was in possession or control of Ship #1; and (b) that person is, when the proceeding is commenced, the owner of Ship #2. A "relevant person", in relation to a maritime claim, means a person who would be liable on the claim in a proceeding commenced as an action in personam. 9. What is the position as regards Bareboat and Time-Chartered vessels? A ship can be arrested for a general maritime claim, when the "relevant person": (a) was, when the cause of action arose, the owner or charterer of, or was in possession or control of the ship; and (b) is, when the proceeding is commenced, the demise charterer of the ship. Arrest is not available of a ship under time charter in respect of a liability of the time charterer. 10. Do your Courts require counter-security in order to arrest a ship? No. 11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien? No. 12. Does you country recognise maritime liens? Under which International Convention, if any? Yes, see Question 5 above. Australia is not a party to any convention on maritime liens, and the Act provides an inclusive definition. 13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm? Provided the required information is provided, the arrest papers can be prepared and filed on the same day. The arrest itself is then in the hands of the court, and the time may depend on the availability of court staff and possibly the location of the ship (eg if there is a need for the Marshal to travel to a remote port). However, arrests can usually be effected within 48 hours. 14. Do you need to provide a POA, or any other documents of the claim to the Court? No. 15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostile, and when are they needed? No original documents are required, other than the court documents themselves, which must generally be physically filed with the court (although electronic lodgement by is permitted out of normal hours). Notarisation is not required. 13

15 16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested? Yes, although in some instances the court will recognise and enforce a valid forum clause if the dispute is contractually based. 17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits? Australian courts will apply any legislative and contractual limitation periods applicable to the claim in question. 18. Do the Courts of your country acknowledge wrongful arrest? Yes. 19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil? Rarely. 20. Is it possible to have a ship sold pendente lite; if so how long does it take? Yes. The time period depends on how long the claimant takes to make an application, whether the application is contested, and the availability of a reasonable market for the ship. * Stephen leads Middletons' Transport, Logistics & Defence Group and practices exclusively in the transport and logistics sectors. Stephen s practice covers a wide range of transport and logistics activities, including: - mergers, acquisitions and disposals of companies, businesses and assets in the transport and logistics sectors; - negotiating, drafting and advising on key operational agreements such as ship construction, sale and purchase agreements, charters; and contracts of carriage, stevedoring agreements, distribution arrangements, labour supply contracts, and marine fuel supply contracts; - advising on risk management and contracting process improvement strategies; - maritime and admiralty dispute resolution including ship arrest. Stephen s experience in relation to ship arrest includes acting in many of Australia s most significant Admiralty cases, including the Iron Shortland, the Skulptor Konenkov, the Skulptor Vuchetich, the Ionian Mariner, the Zoya Kosmodemyanskya, the Turakina and the Rangitata. 14

16 SHIP ARREST IN BAHAMAS By Anthea Parris-Whittaker* PARRISWHITTAKER Counsel & Attorneys Suite 10, Seventeen Centre Bank Lane P.O. Box F , Freeport, Grand Bahama Tel: Fax: Please give an overview of ship arrest practice in your country. The Bahamas occupies a unique geographical position which ensures its status as a major financial player attracting both domestic, international and offshore investment. As one of the world s largest container ports, it is a thriving centre of maritime activity and, as such, Parris Whittaker undertakes a great deal of maritime and shipping law work on behalf of clients ranging from individual crew members to major multi-national corporations. 2. Which International Convention applies to arrest of ships in your country? The Bahamas is party to the 1952 Arrest Convention (ratified 1979). The Convention applies to all vessels flying the flag of states which are signatory to the Convention, and (under article 8 of the convention) to vessels flying the flag of states which were not signatory to the Convention where there is a claim for which the contracting state permits a vessel arrest. 3. Is there any other way to arrest a ship in your jurisdiction? All ship arrests are carried out under the terms of the 1952 Arrest Convention (which is followed by the Supreme Court Act [SCA]). In order to arrest a ship, it is necessary to prove the vessel is connected to the claim, as required by s8 of the SCA. 4. Are these alternatives e.g. saisie conservatoire or freezing order? (Not applicable; see above) 5. For which types of claims can you arrest a ship? There is a huge range of claims for which a vessel might be arrested. These include: Claims for possession or ownership of a vessel, including disputes between co-owners; Claims for damages either suffered by the ship, or caused by it; Claims for injury (including fatal injury) caused by negligent behaviour of owners or crew, or defects in the vessel; Claims for loss of or damage to cargo; Claims relating to an outstanding mortgage or debt secured against the ship; Payment of outstanding wages to crew members and others employed on the vessel; Payment for repair, equipment, construction and dock charges; General costs such as towage and pilotage; Claims relating to salvage; and Claims for payment relating to use of the ship, such as chartering the vessel. 6. Can you arrest a ship irrespectively of her flag? Yes. It is not necessary for the vessel to be flying the flag of a state which is party to the 1952 Arrest Convention. 7. Can you arrest a ship irrespectively of the debtor? Yes, with the possible exception of ships which are under the ownership of another State. Under these circumstances, the vessel may be considered immune from arrest. It will be for the Bahamian courts to make a decision in these cases. 15

17 8. What is the position as regards sister ships and ships in associated ownership? Under the 1952 Arrest Convention, sister ships (i.e. vessels which are deemed to be in the same ownership as an arrested vessel) may also be arrested, until a satisfactory outcome is achieved. Sister ships constitute a significant financial asset, and are often very important to the settlement of a claim. 9. What is the position as regards Bareboat and Time-Chartered vessels? Section 3.4 of the Convention provides that in the case of claims made against a Bareboat or Time- Chartered vessel the charterer and not the owner is liable. Vessels under the ownership of the charterer may be arrested but no other ship under the ownership of the registered owner. 10. Do your Courts require counter-security in order to arrest a ship? It is not necessary to post counter-security in order to undertake a vessel arrest. It is at the discretion of the courts whether the claimant should be required to post counter-security in the event of a wrongful vessel arrest. The courts are more likely to request a counter-security payment if there are substantive doubts that the claim is made on good grounds, and is therefore likely to be successful. 11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien? The procedures by which a vessel may be arrested for either a maritime claim or a maritime lien are the same, and governed by the 1952 Arrest Convention. 12. Does you country recognise maritime liens? Under which International Convention, if any? Yes. The Bahamas recognises maritime liens, under the 1952 Convention. 13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm? Instructions to the firm should ideally arrived no more than 48 hours before an application to make a ship arrest is submitted. It is best practice to file applications early in the day, with the aim of making a successful arrest of the vessel on the same date. Speedy action is essential because of the nature of maritime law, in which vessels are by their nature likely to move out of port at any time. 14. Do you need to provide a POA, or any other documents of the claim to the Court? Applications are made by virtue of a Power of Attorney. Once a Claim Form has been issued, a number of documents in support of the claim should be supplied to the court. These must include: Details of the nature of the claim or counterclaim, including compensation sought The name of the vessel for which arrest is being sought Full details of the vessel to be arrested, including the name and port of registry and the ownership of the ship 15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed? It is not necessary to submit any original documentation in order to undertake a ship arrest. Notarisation is only required to secure Power of Attorney. 16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested? Yes. Under the terms of the 1952 Arrest Convention, the Courts of those states signatory to the Convention have jurisdiction over the claim. 17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits? Once the courts have confirmed that an arrest is to be made, the applicant will have a maximum of up to 60 days (the precise deadline to be set by the Court) within which to complete the vessel arrest. 16

18 18. Do the Courts of your country acknowledge wrongful arrest? Claims for wrongful arrest are not specifically covered by the 1952 Arrest Convention, but will be governed by local state law. There are provisions for handling claims for wrongful arrest within Bahamian Law, which will have jurisdiction over the claim. However, it is important to bear in mind that claims for wrongful arrest will generally be based on issues which are hard to prove, such as bad faith or gross negligence. 19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil? Recent cases in the Bahamas have demonstrated that the Courts are acknowledging the piercing and lifting of the corporate veil. This matter refers to company owners seeking to conceal their identity by hiding behind the veil of the creation of a corporation, which in effect separates an individual (and their liability) from the corporate entity. Where the Courts decide that this separation of the individual (usually the company owner) and the incorporation should not be maintained, the veil is said to be lifted. Under these circumstances the owner or director of a company may be held liable for the debts of the company, which goes against the usual principle that such individuals would be immune from liability, since the corporation would instead be liable. There is no single legal principle under which the corporate veil might be lifted, but the Bahamian courts will act when it is held to be in the interests of justice to do so including in cases relating to ship arrests. 20. Is it possible to have a ship sold pendente lite; if so how long does it take? It is possible to sell a vessel pending the outcome of a judgment, but it is usually necessary to make a strong case for a pendente lite sale. Generally, this kind of sale will be sought when the value of the vessel is decreasing dramatically, so that it is in the best interests of the claimant to make a sale as soon as possible in order to maximise the asset. If a sale is made pendente lite, the proceeds would be frozen under the direction of the Courts until the judgement is made. * Kenra Parris-Whittaker, partner, is a seasoned young litigator with an exceptional track record across all practice areas. Her dedicated and rigorous approach has been crucial to the Firm s success. The Nassau-born, Canadian-educated litigator attributes her success to thinking a few steps ahead of her opponent. The daughter of Bahamas real-estate guru Arthur Parris, Kenra always knew that she would be an attorney. She enrolled in law school (University of Buckingham, 2001, and later Inns of Court School of Law, 2004), then joined Callenders & Co., where she became a senior associate litigating commercial and maritime cases. Now, as an admiralty, maritime, and commercial litigator, Kenra frequently represents crew members, vessel repair shops, shipyard owners, insurers, adjusters and others. She has been uncannily successful in these endeavors. With her reputation for securing successful outcomes for clients across a broad range of practice areas, Mrs. Parris-Whittaker is a wise investment- whether for small firms, major corporations or individuals. 17

19 SHIP ARREST IN BELGIUM By Steven D Hoine* D HOINE & MACKAY Grote Steenweg 633, B-2600 Antwerp Tel: +32-3/ Fax: +32-3/ Please give an overview of ship arrest practice in your country. Belgium, and most specifically the port Antwerp, has with reason a favourable reputation of being a convenient place to arrest ships. The fact that Antwerp is one of the biggest and busiest ports of the world is not the only reason. The arrest of a ship and the accomplishment of the required formalities are well-organised: a simple, fast and short procedure, an experienced Antwerp Maritime bar, local representation of all P&I Clubs of the world, excellent shipping signalling services and, last but not least, several Judges of Seizure who are at the disposal of the parties at every moment 24 hours a day, 7 days a week for all urgent matters related to the arrest of a ship. A vessel can be arrested within a few hours after having received instructions. No power of attorney or original documents are required. The owner of a ship may demand immediate release of the ship upon issuing an acceptable Bank or P&I Club Letter of Guarantee, covering the amount of the claim plus 30% as a retainer for costs and interests. The formalities to lift the arrest are minimal, and can be fulfilled within the hour. The owner of a ship may also request for the withdrawal of the judgement, granting authorisation to arrest the ship. This request has to be filed before the same Judge of Seizure who granted the authorisation. This request is heard on a contradictory basis in summary proceedings. Moreover, in Belgium some rather unique possibilities with respect to arrest of a ship are available. For instance, a vessel can be arrested for certain maritime claims, even if the owner of the vessel is not the debtor of this claim (see further under n 7). 2. Which International Convention applies to arrest of ships in your country? All arrests of sea-going ships are subject to the Brussels Convention 1952 relating to the Arrest of Sea-Going Ships, as enacted in the Belgian legislation. 3. Is there any other way to arrest a ship in your jurisdiction? No. 4. Are these alternatives e.g. saisie conservatoire or freezing order? Not applicable. 5. For which types of claims can you arrest a ship? A sea-going ship can be arrested in Belgian territorial waters as a security for a maritime claim, as specified in littera a to q of art. 1.1 of the Brussels Convention It is generally accepted that the claimant only has to present an allegation of right or claim. As soon as the claimant proves that his maritime claim is sufficiently probable, i.e. when the judge accepts prima facie evidence presented to him on an ex parte basis, his request for authorisation to arrest a ship will be granted. 6. Can you arrest a ship irrespectively of her flag? A sea-going ship can be arrested in Belgian territorial waters, whatever the flag it is flying. 7. Can you arrest a ship irrespectively of the debtor? The ship in respect of which the maritime claim arose, can be arrested, even if it is not the owner

20 but another person who is liable for the maritime claim, such as a bareboat charterer, voyage or time charterer or any other third party. The owner of the ship shall, in order to have his ship released from the arrest, have to give security that guarantees the payment of the claim of the arrestor. In other words, the owner of the ship will have to guarantee the payment of the claim, even if a third person is the debtor towards the arresting party. The only restriction is that the ship to which the maritime claim relates may not be arrested if it changed ownership between the moment the claim arose and the moment of arrest, unless the claim is secured by a maritime lien or mortgage. The transfer/change of ownership of the vessel is however only opposable against the seizing party when such transfer is opposable to third parties in accordance with the applicable law. If the conditions for the opposability of the transfer against third parties are not fulfilled at the time of the arrest, the arrest shall be allowed. 8. What is the position as regards sister ships and ships in associated ownership? If the owner is liable for the maritime claim not only the ship, in respect of which the maritime claim arose, may be arrested but also all other ships in the same ownership. Ships will be deemed to be in the same ownership when all the shares therein are owned by the same person or persons (see also under n 19). 9. What is the position as regards Bareboat and Time-Chartered vessels? The ship in respect of which the maritime claim arose can be arrested, irrespective whether the vessel is Bareboat or Time Chartered. See above under n Do your Courts require counter-security in order to arrest a ship? The counter-security has fallen into disuse in Belgian law. It is therefore uncommon that Belgian courts impose a counter-security on the arrestor. 11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien? There is no procedural difference. 12. Does you country recognise maritime liens? Under which International Convention, if any? Belgium incorporated the Brussels Convention on Maritime Liens and Mortgages of 10 April 1926 in its internal law through Articles 19 to 45 of the Maritime Code. The maritime liens or privileges are listed in Article 23 of the Maritime Code. 13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm? Upon receipt of the instructions to arrest the ship, the arrest of the ship can be effected within approx. 4 hours. The unilateral request to obtain authorisation to arrest a sea-going ship can be submitted at any moment of the day, even out of office hours and during the weekend or holidays. A ship under arrest will not obtain the services of a pilot. More specifically in the port of Antwerp an arrested ship will not be able to leave the port since also the lockkeepers are informed. 14. Do you need to provide a POA, or any other documents of the claim to the Court? No POA is needed. Belgian counsels represent the client without needing to present power of attorney. 15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed? No original documents are required. It is not required either to have documents notarised or apostilled. Furthermore, in practice, no complete file of documents of evidence on the merits of the claim is needed in order to obtain an authorisation to arrest a ship. A claimant, requesting authorisation, only has to make his allegation of the existence of the maritime claim reasonably certain. Given the fact that at the time of the request the claim often just arose, the Judges of Seizure do grant authorisations for claims only scarcely documented. 19

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